Malcolm Rivera
Before 1982, the Constitution of Canada was amended by modifying the British North America Act, 1867, through Acts of the Parliament of the United Kingdom. After the Statute of Westminster in 1931, Canada decided to temporarily allow the UK Parliament to retain the power to amend its constitution. This continued until 1982, when Canada took over the authority to amend its constitution with the Constitution Act, achieving full sovereignty. Since then, the Constitution of Canada has been amended on many occasions, following the amendment procedure set out in the Constitution Act, 1982, also known as the 7/50 formula.
| Characteristics | Values |
|---|---|
| Year of the last amendment | 2022 |
| Number of amendments since 1982 | 13 |
| Nature of the amendments | Limited in scope, dealing only with matters affecting specific provinces |
| Amendment procedure | 5 amending formulas requiring consent of some combination of the House of Commons, Senate, and provincial legislatures |
| Amendment categories | Different categories, depending on the part of the constitution to be amended |
| Amendment requiring unanimous consent | Parts of the constitution that can be modified only with the unanimous consent of all the provinces plus the two Houses of Parliament |
| Amendment requiring the assent of the two houses of Parliament | If a constitutional amendment affects only one province |
| Amendment by Parliament of Canada | Constitutional provisions concerning federal institutions (executive government of Canada, Senate, and House of Commons) |
| Amendment by each province | Each province has the exclusive power to modify its own constitution, if the changes do not concern matters outlined in s. 41 |
| Amendment without a resolution of the Senate | If, within 180 days after the adoption by the House of Commons of a resolution, the Senate has not adopted such a resolution and if, at any time after the expiration of that period, the House of Commons again adopts the resolution |
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What You'll Learn
The Constitution Act, 1982
In addition to patriating the constitution and enacting the Charter, the Constitution Act, 1982, achieved several other significant milestones. It guaranteed the rights of Indigenous peoples in Canada, recognizing and affirming their existing aboriginal and treaty rights, and protecting their use of land for traditional practices. It entrenched provincial jurisdiction over natural resources and provided for future constitutional conferences. The Act also set out the procedures for amending the Constitution, adopting an amending formula that requires the consent of various combinations of the House of Commons, Senate, and provincial legislatures.
Since the patriation of the constitution in 1982, there have been thirteen amendments to the Constitution of Canada. Most of these amendments have been limited in scope, addressing matters specific to individual provinces or groups of provinces. Eight of the thirteen amendments have pertained to a single province, while the remaining five amendments have involved more comprehensive changes requiring unanimous consent from all provinces and the two Houses of Parliament.
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Amendments since 1982
The Constitution Act of 1982 was a significant milestone in Canada's constitutional history, marking the country's full sovereignty and authority to amend its constitution independently. This act introduced several amendments to the previous British North America Act, 1867, including renaming it the Constitution Act, 1867. Since then, Canada has made further amendments to its constitution, utilising one of the five amending formulas outlined in the Constitution Act, 1982.
One notable amendment was the inclusion of the Canadian Charter of Rights and Freedoms, which prevents federal, provincial, and territorial governments from infringing on Canadians' rights and freedoms. This charter also contains a notwithstanding clause, allowing federal or provincial governments to exempt any law from specific charter provisions for a limited period. Additionally, the rights of Indigenous peoples in Canada were guaranteed, and provincial jurisdiction over non-renewable natural resources was established.
The Constitution Act, 1982, also set out the procedures for future amendments, with most sections requiring approval from the Senate, the House of Commons, and at least two-thirds of the provincial legislatures, representing at least 50% of the population. This is commonly known as the 7/50 rule. Certain provisions require unanimous approval from all ten provincial legislatures and the Senate and House of Commons. These provisions include the composition of the Supreme Court, the use of French and English languages, and the right of provincial representation in the Parliament.
Some amendments since 1982 have addressed specific issues, such as the 1987 Meech Lake Accord, which aimed to address Quebec's objections to the Constitution Act, 1982. However, this accord failed to receive ratification from all ten provincial governments. Another notable amendment was the renaming of Newfoundland to Newfoundland and Labrador, and amendments related to provincial schooling in Newfoundland and Quebec. Additionally, Section 35.1, added in 1983, committed the Canadian government and provinces to convening a conference of first ministers and inviting representatives of Aboriginal peoples to discuss any amendments that would affect their interests.
The process of amending Canada's constitution is complex, and the rules are laid out in Part V of the Constitution Act, 1982. These rules emphasise constitutional supremacy and outline different amendment procedures based on the type of amendment being proposed.
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The 7/50 formula
The Constitution of Canada has been amended several times since 1982, when the country gained full sovereignty to modify its constitution. Before 1982, changes to Canada's constitution were made through amendments to the British North America Act, 1867 (now the Constitution Act, 1867), by the Parliament of the United Kingdom.
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Unanimity formula
Before 1982, the Constitution of Canada was amended by modifying the British North America Act, 1867 (now the Constitution Act, 1867). Changes were enacted through Acts of the Parliament of the United Kingdom, also known as the British North America Acts.
In 1982, Canada took over the authority to amend its constitution with the Constitution Act, achieving full sovereignty. Since then, amendments have been made using one of five amending formulas, one of which is the unanimity formula. This formula, contained in section 41 of the Constitution Act, 1982, requires unanimous consent from all provinces plus the two Houses of Parliament for any constitutional amendment to be passed.
The unanimity formula is a type of decision-making process that strives for full agreement from all participants. In the context of the Canadian Constitution, it ensures that any changes to specific sections of the Constitution, such as those related to the office of the Queen, the Governor General, or the Supreme Court of Canada, must be unanimously agreed upon by all provinces and the Senate and House of Commons.
The concept of unanimity is also relevant in other contexts, such as jury trials in criminal law, where many jurisdictions require a unanimous guilty verdict. Additionally, unanimous decisions are often sought in representative democracies and international organizations like the United Nations Security Council, although achieving true unanimity can be challenging due to the diversity of opinions.
The unanimity formula in Canada's Constitution ensures that significant constitutional changes require the consent of all provinces and the federal parliament, reflecting a collaborative decision-making process and a unified agreement on the direction of the country.
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Amendments before 1982
Before 1982, modifying the Constitution of Canada primarily meant amending the British North America Act, 1867. Unlike most other constitutions, the Act had no amending formula. Instead, changes were enacted through Acts of the Parliament of the United Kingdom (or "Imperial Parliament") called the British North America Acts.
Other Commonwealth countries had taken over the authority for constitutional amendment after the Statute of Westminster in 1931, but at the time, Canada decided to allow the Parliament of the United Kingdom to retain the power "temporarily". Between 1931 and 1982, the federal government, on behalf of the House of Commons of Canada and the Senate, would issue an address to the British government requesting an amendment. The request would include a resolution containing the desired amendments, which were always passed by the British Parliament with little or no debate.
A majority of the constitutional amendments before 1982 were acts of the United Kingdom or Canadian parliaments to amend the British North America Act, 1867 (now the Constitution Act, 1867). In some cases, amendments were made to the constitutional structure of Canada by adding entire extra documents to the constitution. These include orders that added provinces to Canada, such as the British Columbia Terms of Union, and documents that altered the structure of the government of Canada, such as the Parliament of Canada Act, 1875.
The British North America Act, 1949, for example, was renamed the Newfoundland Act. The new names of these enactments are used in this consolidation, but their former names may be found in the schedule. The Constitution Act, 1982, was enacted as Schedule B to the Canada Act 1982, achieving full sovereignty for Canada.
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Frequently asked questions
Canada gained the authority to amend its constitution in 1982 with the Constitution Act, 1982.
The Constitution Act, 1982, also known as the 7/50 formula, outlines the procedure for amending the Constitution of Canada. It requires the assent of at least two-thirds of the provinces that represent at least 50% of the population of Canada as a whole.
There have been 13 amendments to the Constitution of Canada since 1982. Most of these amendments have been limited in scope, dealing with matters affecting specific provinces.
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